The high cost of death

Death penalty trials like the one starting Monday cost four times as much as a regular trial

Ignacio Vergara is scheduled to go on trial on murder charges in connection with the March 2002 drug-related shooting deaths of two men in a parked car on a remote South Hall road. He has pleaded not guilty.

From jury selection to attorney pay, from hours upon hours of pretrial preparation to added costs for juror lodging and transportation, capital trials are by far the most expensive criminal proceedings undertaken in local superior courts.

As court officials prepare to begin jury selection Monday in Hall County's first locally prosecuted death penalty case in nine years, the final tab for Hall taxpayers remains largely guesswork.

Ignacio Vergara is scheduled to go on trial on murder charges in connection with the March 2002 drug-related shooting deaths of two men in a parked car on a remote South Hall road. He has pleaded not guilty.

The case has been delayed by pretrial motions and appeals and gone through three different district attorneys since it was indicted. Jason Deal, now a superior court judge, made the decision to seek the death penalty against Vergara when he was Hall County's district attorney. Current District Attorney Lee Darragh will prosecute the case.

An estimate by The Times using figures provided by court officials puts the cost for jurors and bailiffs alone at more than seven times the normal cost for a murder trial in which the death penalty is not sought. Whereas a routine, one-week murder trial costs about $6,000 for jury and bailiff pay, a two-week death penalty trial costs nearly $46,000, according to the newspaper's estimate.

But there are a number of variable costs yet to be finalized. The newspaper's estimate doesn't count attorney pay. Vergara's case predates the creation of a statewide public defender office for death penalty defendants funded through the state rather than the county. Hall County will pay Vergara's two court-appointed attorney's fees, a final figure which is not yet available. The estimate also doesn't include overtime pay for courtroom deputies, increased postage costs for a five-page questionnaire that was mailed out to 500 prospective jurors, and the cost of transportation and lodging for witnesses.

One University of North Carolina study estimates that a standard murder trial where the pay for judge, jury, prosecutor and defense lawyer is fairly static costs between $40,000 and $60,000. The average cost for a death penalty trial, from pretrial motions to the first direct appeal if a death sentence is imposed, is $250,000, according to the study. The defense cost alone averages $150,000. In Georgia, those costs are shared between the counties and the state.

"As long as the state has the death penalty as an option, the public should be prepared to pay the cost," said ardent death penalty opponent Mike Mears, an associate dean at Atlanta's John Marshall Law School. He also is a former director of the Georgia Multi-County Public Defender and has been involved in more than 100 capital cases.

And while opponents of the death penalty almost always point out the expense, they can agree with prosecutors on one point - cost shouldn't be a consideration when deciding to seek it.

"If there's going to be a death penalty, then it would inappropriate for a district attorney to consider seeking it based on how rich or poor a county is," Mears said. "That's almost as unfair as the death penalty itself."

Henry County District Attorney Tommy Floyd, chairman of the Prosecuting Attorneys' Council of Georgia, said there are a several considerations in seeking death, but cost isn't one of them.

"Quite frankly in death penalty cases, the cost is not something we evaluate," Floyd said. "That's just the cost of doing business in superior court. It's not that we're not mindful of it, but you can't let that be a deciding factor."

The facts of the case, the strength of the evidence and the wishes of the victim's family all play into the decision, Floyd said. The more horrific the crime, the more appropriate it is to seek death, he said.

But there is one other, important consideration for prosecutors, Floyd said. Except in the cases of certain repeat offenders, the only way under Georgia law to put a defendant in prison for life without the chance of parole is to seek the death penalty. If a jury convicts a defendant in a capital case but decides to spare his life, jurors still can choose between a sentence of life without parole or life with the possibility of parole. In ordinary murder cases, life with the possibility of parole is the only sentencing option for a judge.

Floyd said the District Attorneys' Association of Georgia's top priority is pushing forward a legislative bill that would permit prosecutors to seek life without parole without seeking death in murder cases. The bill stalled in the Senate this year.

Should the law pass, "it would probably reduce the number of murder cases where the death penalty is sought," Floyd said.

Floyd, who has three death penalty trials pending in Henry County, said he never hears complaints from the overseers of the county budget about the costs of such cases. But he acknowledges it can become a political issue for prosecutors in more rural counties with much smaller budgets.

"I have heard from other district attorneys in other parts of the state who had pressure, with people telling them, ‘you're going to break us.'" Floyd said.

For a number of years, Hall County has set aside a "capital contingency fund" solely for the funding of additional costs associated with death penalty cases, said Reggie Forrester, trial court administrator for the Northeastern Judicial Circuit. The fund balance stays at about $100,000 and rolls over from year to year if not used, he said.

"It's almost like an insurance policy, so that when this does come up, we can cover the costs without having to scurry around," Forrester said. "We use it when necessary and replenish it when necessary."

There are two other death penalty cases pending in Hall County, though they are unlikely to go to trial before 2009.

Hall County, with an operating budget of more than $95 million, wouldn't face a financial crisis if it had to absorb the cost of several death penalty trials in a short period of time. But county commissioners in Dawson County were faced with the grim prospect of raising taxes to fund three death penalty trials connected to one 1991 murder, Mears recalled. The case involved the premeditated murder of a witness preparing to testify in an armed robbery trial and ultimately resulted in co-conspirator Tommy Waldrip being sent to death row.

"There was a discussion of actually raising the millage rate to pay for the trials," Mears said.

Georgia at one time had an emergency fund to assist rural, economically challenged counties in funding certain expenses in capital trials, said Steve Ferrell, court administrator for the Ninth Judicial Circuit, which includes Hall. That fund no longer exists, though the state does pay for the majority of defense attorney fees in death penalty trials through the Office of the Capital Defender. Local judges must still approve defense expenses paid out of the county budget, such as expert witnesses.

Ferrell said a contingency fund like the one Hall maintains is a rarity.

"I would imagine Hall is one of the few counties that does that," Ferrell said.

Forrester, who expresses no opinion over the cost of death penalty trials, has been part of a meticulous preparations for the trial that is scheduled to begin Monday. He allowed that it's not like preparing for a normal murder trial that doesn't include the death penalty.

"There is a major difference because of the dictates of the law," Forrester said.

Mears, the death penalty opponent, said while he doesn't think cost should be a consideration for prosecutors, it is "something we want to bring to the public's attention."

"I think eventually that's something that the death penalty's proponents and opponents could agree on - it's just too darn expensive."